The UK government last week issued a consultation on “extending redundancy protection for women and new parents”.
The proposals would mean that women who have recently returned to work after a period of maternity leave would have the same protection as women on maternity leave in a redundancy situation. The government’s provisional view is that six months would be an appropriate period of “return to work” protection. This is perhaps based on one of the recommendations in the 2017 Maternity Action report we commented upon.
As the law currently stands, a woman whose job becomes redundant during her maternity leave period is entitled to be offered (as opposed to merely having the opportunity to apply for) a suitable available vacancy where one is available with the employer or an associated employer. If an employer fails to comply with this obligation, any dismissal will be automatically unfair and probably, though not necessarily, discriminatory. This obligation currently only arises in connection with women actually on maternity leave: if the woman has returned to work or has not yet gone on leave then her employer is not under this strict obligation to offer her a suitable available vacancy in priority to others. It still has to take reasonable steps to find her alternative employment, as would be the case with other potentially redundant employees. Similar protection applies to parents on adoption leave or shared parental leave.
The government is also seeking views on whether parents returning to work from adoption, shared parental and unpaid parental leave should be granted similar additional protection in a redundancy situation. Based on the existing situation in relation to leave and pay, it seems likely that consistency of treatment across the family-friendly regime would be maintained.
The government has launched this consultation in response to concerns that too many women are encountering discrimination after having children and are “forced out of work” when they seek to return. Research commissioned by the Department for Business, Energy and Industrial Strategy in 2016 found that one in nine women (11%) said they had been fired or made redundant when they returned to work after having a child, or were treated so badly they felt forced to leave their job. The detail of that report puts that headline number into a little more context. In fact, only 2% (one in fifty) were actually dismissed and for the others the report was careful to state that it was based on mothers’ “perceptions of experiences” which “do not necessarily fall under the legal definition of discrimination”. In particular, the BEIS research numbers did not distinguish between those leaving through some unlawful failure by the employer and those who were simply unable, perhaps despite their employer’s best efforts, to square their childcare responsibilities with the reasonable needs of the business. This is obviously an issue unrelated to possible redundancy and this proposed additional protection. A number of commentators have sensibly suggested that a better approach to improving retention rates immediately post maternity leave would have been for the government to look at the price of childcare and the rules relating to flexible working.
It is possible to conclude on that basis that there is not the strongest of objective evidence that this new measure (a) is needed or (b) will make any difference. However, if it is introduced then what does it mean?
- By extension from the existing practice under Regulation 10 of the Maternity and Parental Leave Regulations 1999, it would not prevent you from making a returning mother redundant.
- It would not require you to give her priority over others in the selection of who is put at risk or who is ultimately chosen to lose their job.
- It would only apply where there is a vacancy at that time, so the employer’s description of events will need to be carefully considered – reducing 5 jobs in her team to 2 is redundancy but no vacancy, while removing 5 roles and replacing them with 2 new ones does on its face create vacancies which the recent maternity leaver would have to be offered.
- These new rules could also affect the timing of redundancies as employers will know that if they are effected within that 6 month period, vacancies elsewhere in the group will have to be offered to the woman if she can fill them adequately and even if she is far from the best candidate available, internally or externally.
- The extended duty on the employer would last from when the new returner is put at risk to the expiry of any notice period given. It would not apply if she is not at risk before the vacancy is filled or if she has already been made redundant before it arises.
- Note the reference above to the duty extending to associated employers – this will be a new burden to large corporate groups with diverse subsidiaries in the same geographical area who have not hitherto had much cause to talk to each other. Group job boards and properly-maintained Group vacancy lists will be at a premium.